Rynearson v United States of America, et all

8/11/2019 Rynearson v United States of America, et all

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PLAINTIFFS FIRST AMENDED ORIGINAL COMPLAINT Page 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

DEL RIO DIVISION

RICHARD RYNEARSON, )(

Plaintiff, )( Civil Action No.:DR:12-cv-00024-AM-CW

V. )(

THE UNITED STATES OF AMERICA, )( JURY TRIAL

BORDER PATROL AGENT LANDS,

INDIVID., and BORDER PATROL AGENT )( PLAINTIFFS AMENDED COMPLAINT

CAPTAIN RAUL PEREZ, INDIVID.,

)(Defendants.

PLAINTIFFS FIRST AMENDED ORIGINAL COMPLAINT

NOW COMES Plaintiff RICHARD RYNEARSON amending his complaint as a matter

of course1 pursuant to FCRP 15(a)(1)(B) complaining of THE UNITED STATES, BORDER

1 FRCP 15(a)(1)(B) allows for complaint amendment as a matter of course--that is

without permission of the court or opposing parties--up to 21 days after service of a FRCP

12(b)(6) motion to dismiss Defendants only partially filed their FRCP 12(b)(6) motion August

3, 2012, and then served by mail Exhibit D upon the Court and plaintiff (see ECF docket),

therefore, 3 days are added to the deadline to amend to August 27, 2012. Furthermore, an

amended complaint can serve as a response to a FRCP 12(b)(6) motion to dismiss.

Plaintiff also objects to the inclusion of Exhibits A, B, C and D to defendants motion to

dismiss as such documents are outside the scope of review in a FRCP 12(b)(6) motion to dismiss.

Lovelace v. Software Spectrum, Inc.,78 F.3d 1015, 1017-18 (5thCir. 1996). In the very limited

circumstances where a court may consider extrinsic documents in a FRCP 12(b)(6) motion the

documents must not be critical to the outcome and provide only background facts and are usuallyreserved for unassailable public records--clearly not the case here. Lovelace,78 F.3d at 1017-18.

Additionally, this court has not converted defendants motion to dismiss into a summary

judgment motion. If there is conversion, the parties must be given notice to present additional

materials. Plaintiff objects to such conversion as discovery is needed.

Additionally, Plaintiff unequivocally controverts the accuracy of the affidavit Exhibits of


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PATROL AGENT LANDS, INDIVID., and BORDER PATROL AGENT CAPTAIN RAUL

PEREZ, INDIVID., and will show the Court the following:

JURISDICTION AND VENUE

1. This Court has jurisdiction over Plaintiffs federal claims, under 28 U.S.C.

1331, 42 U.S.C. 1983 and 1988, and supplemental jurisdiction, under 28 U.S.C. 1367(a), to

hear Plaintiffs state law claims, if any. Jurisdiction is also founded under the Fourth, Fifth, Sixth

and Fourteenth Amendments to the United States Constitution, 28 U.S.C. 1343 and 1367, and

Federal Statutes 18 U.S.C. 241, 18 U.S.C. 242.

2. Venue is proper in this Court, under 28 U.S.C. 1391(b), because the incident at

Lands and Perez at least as to their intent in detaining Richard, their belief that they did not

already know Richards immigration status from previous engagements and circumstances, that

they had any reasonable suspicion or probable cause to detain Richard for as long as they did,

that the detention was of a duration that was reasonable, that they asked about immigration status

earlier than well after the reasonable duration for an immigration stop, that the length of time indetention was not an illegal search and seizure, and as to many other of the allegations in the

affidavits. Likewise, neither Lands nor Perez are experts as to what is a reasonable length of

detention. Furthermore, plaintiff needs discovery to get the official reports of the incidents to

check the accuracy of the facts in the affidavits and also by deposition of Lands and Perez.


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issue took place in Uvalde County, Texas, within the United States Western District of Texas.

PARTIES

3. Plaintiff Richard Rynearson (hereinafter Richard or Mr. Rynearson) is a resident

of Curry County, New Mexico.

4. Defendant Border Patrol Agent Lands, Individually, is an individual and can be

served with process at 30 Industrial Park, Uvalde, Texas 78801.

5. Defendant Border Patrol Agent Raul Perez, Individually, is an individual and can

be served with process at 30 Industrial Park, Uvalde, Texas 78801.

6. Defendant United States of America is the employer of defendant border patrol

agents.

7. Richard served a Notice of Claim in compliance with A.R.S. 12-821.01 on August

26, 2010 upon the appropriate individuals, and Defendant U.S. Customs and Border Protection

and United States of America denied this claim by written denial received by Plaintiff on January

14, 2011.

FACTUAL BACKGROUND

8. On March 18, 2010, Richard, a major in the United States Air Force stationed at

Laughlin Air Force Base, was driving in a car by himself on Highway 90 in Uvalde, Texas and

came upon a U.S. Border Patrol checkpoint where he had been many times before. When

Richard first stopped at the checkpoint, with his window partially rolled down, Border Patrol

Agent Lands asked Richard, Is this your vehicle, sir? Richard responded, It is. Agent Lands

then asked, Can you roll down your window, is that as far it will go? Richard answered, No, it


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can go down more. and rolled his window down further. Agent Lands then stated, You said

this is your vehicle? Richard repeated, It is, yeah. Agent Lands asked this because he wanted

to do an illegal search and seizure of Richard and also his vehicle for contraband unrelated to

immigration status without probable cause or reasonable suspicion.

9. Agent Lands then directed Richard to secondary inspection area, and Richard

complied. The dialogue in primary inspection area between the Richard and Agent Lands, prior

to the order to secondary, was a mere ten seconds. At no time was any question relating to

immigration status asked. There was no contraband in Richards car or on his person nor

anything indicating there was. Richard was directed to a secondary inspection area within a few

seconds and asked to get out of his vehicle. There was no legal reason to extend the stop by

directing Richard to the secondary checkpoint and it was never articulated why Richard was

directed to the secondary checkpoint or why he had to get out of the vehicle. At the time Richard

was referred to the secondary inspection area Defendant Agent Lands had no suspicions or cause

to believe that Richard was illegally in the United States or had or was about to commit any

crime.

10. In secondary, Richard provided his military ID and driver's license upon request,

and Agent Lands copied information from those documents to a notepad. Agent Lands asked no

questions, in secondary, relating to immigration status until more than ten minutes into the

detention, and then not until Richard asked Agent Lands if he would like a passport. Agent Lands

ignored the offered passport and responded to the question by asking, Are you a U.S. citizen?

Richard answered, I am a U.S. citizen. Agent Lands then asked, How come you wouldn't


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Richard responded, He never asked me my citizenship. Captain Perez then stated, Let me

check out your passports, and well get you on your way, sir.

13. Captain Perez then began to question the Richard for the identity of his

commanding officer, and then extended the detention by fifteen more minutes as he called

Laughlin Air Force Base. Captain Perez asked for Richards commanding officers name

without any reason other than Perez wanted to harass Richard by getting him into trouble with

the military for not allowing the illegal search and seizure of Richards vehicle and person and to

try to get Richard to comply with further illegal search and seizure of Richards vehicle and

person. Defendant Captain Perez informed Richard he would contact Provost Marshall and CID.

Captain Perez could easily have obtained Richards status from Laughlin Air Force Base in

minutes, even though there was no legal reason to do so.

14. Border Patrol Agent Captain Perez was not concerned with Richards immigration

status but wanted to perform an illegal search and seizure of Richard and Richards vehicle

without any reasonable suspicion or probable cause that any crime was committed or that

contraband was present in the vehicle or that there was anything awry with Richards

immigration status.

15. Captain Perez has rank and supervisory duties over Agent Lands including Lands

methods of questioning, detaining and investigating Richard and Captain Perez was discharging

those duties at the time of Richards illegal detention. Captain Perez knew that Lands was doing

illegal searches and seizures of vehicles and persons at the checkpoint and knew thats what

Lands was trying to do to Richard and his vehicle. Perez believed Richard when Richard said


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Lands had not asked about immigration status but pretended that Lands had so asked. Both Perez

and Lands knew that it was common practice to do illegal searches and seizures of persons and

vehicles at the checkpoint and both participated in the illegal searches and seizures.

16. Richard was detained by Defendants for around thirty-four with no explanation by

Defendants as to the reason behind seizing his person and vehicle. The length of the detention

was far longer than the few minutes needed to check immigration status of a United States citizen

such as Richard Rynearson a Major in the United States Air Force out of Laughlin AFB

presenting U.S. passport, drivers license and military ID.

17. At no time was Richard ever combative during the incident. Richard made no

threatening gestures with his arms or legs or any other part of his body. Richard did not resist

answering any questions that were asked of him except the question about who his commanding

officer was--which was just a technique to gain compliance with illegal searches and seizures--by

Defendant Agent Lands and Defendant Captain Perez.

18. Richard at no time acted is any manner to give defendants reasonable suspicion or

probable cause that a crime had been or currently was being committed or that any federal

immigration statute or any other law had been or was being violated. Richard had not committed

any crime nor was he in violation of any immigration statute or any other law.

19. The detention lasted nearly thirty five minutes. Richard answered every question

asked, with the exception of telling Captain Perez who his military commander was. Richard

complied with every request, other than the order to exit the vehicle. The detention was

unreasonable, far beyond the brief time period necessary to inquire into immigration status.


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20. Defendants were not concerned with immigration status as indicated by the lack

of inquiry into immigration status, ignoring a military ID card showing Richard was a military

officer and, therefore, a U.S. citizen as all military officers are U.S. citizens, ignoring Richards

offering of a passport, the repeated false allegation that Agent Lands had asked for citizenship

status in the ten second primary conversation, and finally by Captain Perez calling Richards

military chain of command despite the over abundance of proof of immigration status at his

disposal.

21. One month later, the Chief Border Patrol Agent for the Del Rio Sector, Agent

Robert L. Harris, sent a letter to Richards military commander Lt. Col Richard L. Nesmith

acknowledging video of the incident on You Tube (a video with sound exists of the entire

incident), and claiming Richards actions were unbecoming an officer. The letter was in full

agreement with all the practices and procedures that the defendants employed that day thereby

ratifying defendants acts of illegal detention and search. The letter criticized Richards acts and

was designed to make Richard be quiet about the illegal detention and search of Richard and his

vehicle by Lands and Perez. In fact their actions of illegal detention and search were praised by

the Border Patrol.

22. Neither Agents Lands nor Agent Perez were disciplined or retrained for their

wrongful conduct when their exact actions were completely reviewed by the Border Patrol nor

were they told to do anything different from the acts and practices on the videotape.

23. On at least three previous occasions Richard had been stopped and detained at the

same border station longer than necessary to determine immigration status and on each of those


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occasions there was no reasonable suspicion or probable cause that Richard had been or was

committing a crime or any violation of the law immigration or otherwise. Richard always acted

in a lawful manner and answered all questions. On one such occasion Richards car was illegally

searched and Richard sent a letter to the Del Rio border patrol chief to complain. At a stop after

the letter was sent the checkpoint border patrol agent said something to the effect of you are the

only pilot who wont answer where youre going.

24. In November 2007, Richard was stopped at the same Uvalde checkpoint and refused

to tell the border patrol his travel plans. The border patrol agent then ordered Richard out of the

car, and Richard asked if he had probable cause. The dog handler then claimed, "My dog gives

me probable cause," fabricating that the dog had hit on the car. Richard exited the vehicle and the

agents performed a search of Richards vehicle without consent or probable cause or reasonable

suspicion and took Richards belongings out of the car and threw them on the ground. Nothing

was found. Richard sent a letter to the Chief of the Border Patrol about the incident but nothing

was done.

25. On August 14, 2008, Richard was stopped at the border checkpoint and refused to

tell the border patrol his travel plans and that he thought it was an invasion of privacy. The

border patrol agent then ordered Richard to open his trunk. Richard then asked if the agent had

reasonable suspicion. The agent then asked the dog handler if he had run the dog yet but the dog

handler had not. The agent then ordered Richard to pull over to a parking area. An agent R. Moya

then came over and told Richard to just answer the questions and that the questions are asked of

everybody (when in fact they are not) and because they were just making conversation.


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Moya asked questions about Richard being in the military and said that he was the first pilot

coming through here to refuse to answer the questions.

26. Also, on another occasion in 2008 or 2009 Richard was stopped at the border

checkpoint and refused to tell the border patrol his travel plans and that it was an invasion of

privacy. The border patrol agent then lectured Richard about respect for authority and asking

various questions and was let go after a few minutes.

27. Due to the above described acts of Defendants Richard has experienced intense

anxiety especially when driving by or through the border checkpoint as well as great fear and

anger and has lost of enjoyment of life.

COUNT ONE

Negligence and/or Gross Negligence

28. Plaintiff alleges and incorporates the preceding paragraphs as stated above.

29. Defendants owe a duty of reasonable care to Mr. Rynearson.

30. Defendants actions were negligent and/or grossly negligent, and Defendants

breached the duty of reasonable care.

31. As a direct and proximate result of said Defendants breach of their duty of care to

Mr. Rynearson as described herein, Mr. Rynearson sustained substantial injury, for which he is

entitled to redress from said Defendants.

COUNT TWO

False Arrest and Imprisonment



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33. Defendants caused Mr. Rynearson to be detained, without lawful authority.

34. As a direct and proximate result of said Defendants actions, Mr. Rynearson

sustained substantial injury, for which he is entitled to redress from said Defendants.

COUNT THREE

Intentional Infliction of Emotional Distress


36. The conduct of each Defendant as described herein was extreme and outrageous,

and was either intended to cause emotional distress to Mr. Rynearson, or was performed in

reckless disregard of the certainty that such distress will result from their conduct.

37. Mr. Rynearson did, in fact, sustain severe emotional distress as a result of

defendants. Due to the above described acts of Defendants Richard has experienced intense

anxiety especially when driving by or through the border checkpoint as well as great fear and

anger and has lost of enjoyment of life.

38. As a direct and proximate result of said Defendants intentional infliction of

emotional distress, Mr. Rynearson sustained substantial injury, for which he is entitled to redress

from said Defendants due to the illegal detention of Mr. Rynearson.

COUNT FOUR

28 U.S.C. 1343 and 1367


40. Defendants Agent Lands and Captain Perez, by detaining Mr. Rynearson and his

vehicle without probable cause, violated Major Rynearsons rights under the Fourth, Fifth, Sixth


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and Fourteenth Amendments to the United States Constitution. Defendants Agent Lands and

Captain Perez had no reasonable suspicion or probable cause to detain and seize Richard and his

vehicle, asked questions unrelated to immigration status and detained Richard and his vehicle

way beyond the amount of time reasonable or necessary to determine immigration status. See

City of Indianapolis v. Edmond, 531 U.S. 32 (2000); United States v. Machuca-Barrera, 261

F.3d 425 (5th Cir.2001).

41. As a direct and proximate result of Defendants violation of Mr. Rynearsons

constitutional rights, Mr. Rynearson sustained damages, including, but not limited to, pecuniary

loss, mental anguish, damage to his reputation and standing in the military, and damage to his

military career, all in an amount to be proven at trial.

42. Defendants Agent Lands and Captain Perez wrongful acts were intended to cause

Mr. Rynearson injury, or were motivated by spite or ill will, or said Defendants acted to serve

their own interests, having reason to know and consciously disregarding a substantial risk that

their conduct might significantly injure the rights of Mr. Rynearson. Thus, Defendants wrongful

acts, therefore, merit an award of exemplary damages against them in their individual capacities

in an amount to be proven at trial that is sufficient to punish the individual agents, and to deter

the individual agents and others from engaging in such wrongful acts in the future.

COUNT FIVE

BivensAction-False Imprisonment/Unreasonable Search and Seizure


44. Defendants falsely imprisoned Mr. Rynearson in his car as he was not free to go


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until cleared by the defendants. Because of defendants acts Mr. Rynearson suffered mental

anguish and psychological injuries, and continues to suffer mental anguish and psychological

injuries.

45. These acts also constitute an Unreasonable Search and Seizure under the Fourth

Amendment.

COUNT SIX

BivensAction-Failure to Intervene/Supervise


47. Defendants falsely imprisoned Mr. Rynearson in his car as he was not free to go

until cleared by the defendants. Defendants could have intervened in each other s illegal

detention of Mr. Rynearson but failed to do so. At no time did Mr. Rynearson consent to being

held and detained. In addition Captain Raul Perez had supervisory duties over Agent Land but

failed to exercise and/or exercised those duties improperly causing Defendant to be detained

illegally, false imprisoned and suffer an Unreasonable Search and Seizure under the Fourth

Amendment.

48. Because of both defendants failure to intervene and Agent Lands failure to properly

supervise, Mr. Rynearson suffered mental anguish and psychological injuries, and continues to

suffer mental anguish and psychological injuries.

ACTING IN CONSPIRACY AND CONCERT/AGENCT RESPONDEAT SUPERIOR


50. At all times defendants were acting in concert and in conspiracy and as agents of


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the United States of America. It is clear from the acts described above that Perez and Lands

knew that there was no reasonable suspicion that Richard had done anything wrong and that

Richard was being detained to do an illegal search of his vehicle for contraband in violation of

the Fourth Amendment. Perez lied that Lands had asked about immigration status at the primary

when Perez knew Lands had not asked anything about immigration status and Perez knew that

Lands was trying to do an illegal search of Richards vehicle for contraband when there was no

reasonable suspicion or probable cause to do so. The United States is also liable via respondeat

superior for defendants acts.

JURY TRIAL

51. Mr. Rynearson demands trial by jury on all issues triable to a jury.

WHEREFORE, Plaintiff Richard L. Rynearson, for each and every cause of action above,

demands the following relief, jointly and severally, against all Defendants as follows:

A. Compensatory general and special damages in an amount according to proof at

time of trial;

B. Exemplary damages, against Defendants, for the intentional acts described

above or for those done recklessly or with deliberate indifference, in an amount sufficient to deter

and to make an example of those Defendants;

C. Reasonable attorneys fees and expenses of litigation;

D. Costs of suit necessarily incurred herein;

E. Pre and post judgment interest according to proof; and

F. Such further relief as the Court deems just and proper.


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RESPECTFULLY SUBMITTED

LAW OFFICE OF RANDALL L KALLINEN PLLC

/S/ Randall L. Kallinen_______________________________________

Randall L. Kallinen

State Bar of Texas No. 00790995

U.S. Southern District of Texas Bar No.: 19417

Admitted, Fifth U.S. Circuit Court of Appeals

Admitted, U.S. Eastern District of Texas

511 Broadway Street

Houston, Texas 77012Telephone: 713/320-3785

FAX: 713/893-6737

E-mail: [email protected] for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has been served

upon opposing counsel as indicated below by ECF on August 23, 2012.

Harold E. Brown, AUSA

601 N.W. Loop 410, Suite 600

San Antonio, Texas 78216

/s/ Randall L. Kallinen

_________________________

Randall L. Kallinen


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1



DEL RIO DIVISION

MAJOR RICHARD RYNEARSON, )

Plaintiff, ))

v. ) Civil Action No. DR-12-CA-0024-AM-CW

)

THE UNITED STATES OFAMERICA, )BORDER PATROL AGENT LANDS, )

Individually, and BORDER PATROL )

AGENT CAPTAIN RAUL PEREZ, )Individually, )

)

Defendants. )

MOTION TO DISMISS ALL CLAIMS ASSERTED AGAINST DEFENDANTS

BORER PATROL AGENT JUSTIN K. LANDS AND

SUPERVISORY BORDER PATROL AGENT RAUL PEREZ

Comes now Border Patrol Agent Justin K. Lands and Supervisory Border Patrol Agent

Raul Perez, by and through their individual counsel, the undersigned Assistant United States

Attorney, filing this motion to dismiss the conspiracy and supervisory Bivens claims against

them pursuant to Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim upon which relief can be

granted, and summary judgment on the remaining claims on grounds of qualified immunity.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

The defendants in this civil action are the United States of America, United States

Customs and Border Protection,1Supervisory Border Patrol Agent Raul Perez and Border Patrol

Agent Justin Lands.2 The claims alleged in this action consist of common law torts and

Constitutional torts alleged against all defendants. The Court has substituted the United States

1Not captioned, but alleged to be a defendant in paragraph 7 of Plaintiffs Original Complaint.2 Though not listed as a party in paragraphs 3 7, Plaintiffs factual allegations mentionDefendant Chief Patrol Agent Harris ( 17). It is assumed that this is simply a typographical

error since this person is not named as a party.


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2

for Defendants Perez and Lands as the sole defendants on the state law tort claims. Defendants

Lands and Perez respond to the remaining constitutional tort allegations in Plaintiffs First

Amended Original Complaint as follows.

FACTS

See Fact Appendix.

ARGUMENT AND AUTHORITIES

A. The Conspiracy and Supervisory Claims Must be Dismissed for Failure to

State a Claim Upon Which Relief can be Granted.

1. The Standard of Review.

To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129

S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In

deciding whether the complaint states a valid claim for relief, we accept all well-pleaded facts as

true and construe the complaint in the light most favorable to the plaintiff. In re Great Lakes

Dredge & Dock Co. LLC, 624 F.3d 201, 210 (5th

Cir. 2010). However, [t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.

Iqbal, 129 S.Ct. at 1949 (internal citation omitted). The Court may only consider the four

corners of Plaintiffs Original Complaint in determining whether to grant the motion. SeeGreat

Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 (5th Cir.2002).

Further, dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when a

defendant attacks the complaint because it fails to state a legally cognizable claim. Ramming v.

United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States,


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3

536 U.S. 960 (2002). A complaint is also subject to dismissal for failure to state a claim due to

the absence of plausible facts alleged under a cognizable legal theory. In re Katrina Canal

Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007), cert. denied sub nom. Xavier Univ. of

Louisiana v. Travelers Cas. Prop. Co. of America, 552 U.S. 1182 (2008) (To survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is

plausible on its face.) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).

A claim has facial plausibility when the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged. Montoya v. FedEx

Ground Package System, Inc., 614 F.3d 145, 148 (5th Cir.2010), quoting Ashcroft v. Iqbal, 129

S.Ct. 1937, 1940 (2009). Dismissal is appropriate when the plaintiff fails to allege enough

facts to state a claim to relief that is plausible on its face,and therefore fails to raise a right to

relief above the speculative level. Montoya, 614 F.3d at 148, quoting Twombly, 550 U.S. at

555, 570.

2. Plaintiffs allegations must be evaluated solely under the Fourth

Amendment.

The Fourth Amendment is the sole basis for Plaintiffs claims; the remaining alleged

constitutional bases for this action under the Fifth, Sixth and Fourteenth Amendments are

frivolous. The Fifth Amendment does not apply because it is settled law that the Fourth

Amendment provides an explicit textual source of constitutional protection against

unreasonable seizures by federal agents, and therefore the Fourth Amendment, not the Fifth

Amendment and its more generalized notion of substantive due process, must be the guide for

analyzing these claims. See Cnty of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (quoting

Albright v. Oliver, 510 U.S. 266, 273 (1994)). The Sixth Amendment is obviously inapplicable

since it clearly applies to domestic criminal proceedings. See United States v. Balsys, 524 U.S.


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4

666, 672 (1998). An immigration inspection is not a criminal proceeding. It is beyond obvious

that the Fourteenth Amendment is inapplicable because it applies only to state, not federal,

action. SeeMcGuire v. Turnbo, 137 F.3d 321, 323 (5th

Cir. 1998) (dismissing 14th

Amendment

claim against federal employees acting under color of federal law).3

3. Plaintiff Fails To State a Bivens Claim for Conspiracy

Plaintiffs who allege conspiracies to violate constitutional rights must plead the specific

operative facts demonstrating a plausible basis for concluding that a conspiracy existed. Bald

allegations that a conspiracy existed are insufficient. Lynch v. Cannatella, 810 F.2d 1363,

1369-70 (5th Cir.1987). See also McAfee v. Fifth Circuit Judges, 884 F.2d 221, 222 (5th

Cir.1989), cert. denied 493 U.S. 1083 (1990) (conclusory allegations which lack reference to

material facts are not sufficient to state a claim of conspiracy under Section 1983 orBivens).

Plaintiffs allegations are nothing more than a conclusory statement of his conspiracy

claim. Paragraph 50 contains a single, conclusory statement: At all times defendants were

acting in concert and in conspiracy and as agents of the United States of America. Plaintiff

does not allege facts anywhere in the First Amended Complaint that Defendants Lands and Perez

agreed to undertake action to violate his Fourth Amendment rights, an essential element of the

conspiracy. See Holdiness v. Stroud, 808 F.2d 417, 425 (5th

Cir. 1987) (The essence of

conspiracy is an understanding or agreement between the conspirators). He makes conclusory

allegations of motive by Agent Lands in paragraphs 8, 9, 11, and 21. He makes the same

conclusory allegations against Agent Perez in paragraphs 12, 13, 14, and 15. Plaintiff does not

3Plaintiffs allegation that the 14

thAmendment applies is specious. Plaintiff specifically alleges

that the defendants were acting as agents of the federal government (First Amended Original

Complaint, 50).


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5

allege any specific operative facts supporting his claim of conspiracy in this paragraph or

elsewhere in the complaint. He alleges that on other occasions he was improperly detained at the

checkpoint, but he does not allege that Defendants Lands and Perez were involved in those

detentions. Accordingly, this claim must be dismissed for failure to state a claim upon which

relief can be granted.

4. Plaintiff Fails to State a Bivens Claim for Supervisory Liability

The Supreme Court squarely addressed supervisory liability in Ashcraft v. Iqbal,

finding that supervisory liability is inconsistent with his accurate stipulation that petitioners may

not be held accountable for the misdeeds of their agents. A federal official is entitled to qualified

immunity if there is no personal involvement in the alleged constitutional violation. See Ashcroft

v. Iqbal, 556 U.S. 662, 677 (2009) (a government official is only liable for his or her own

misconduct);Mouille v. City of Live Oak, Tex.,977 F.2d 924, 929 (5th

Cir. 1992), cert. denied

sub nom. Liberda v. City of Live Oak, Tex., 508 U.S. 951 (1993) (supervisory officials cannot

be held vicariously liable for their subordinates actions). Thus, Plaintiff must show that each

Government-official defendant, through the officials own individual actions, has violated the

Constitution. Iqbal, 556 U.S. at 676 (emphasis added). In a 1983 suit or a Bivens action

where masters do not answer for the torts of their servantsthe term supervisory liability is a

misnomer. Id., at 662. [E]ach Government official, his or her title notwithstanding, is liable

only for his or her own misconduct. Id. To state a claim against Defendants, Plaintiff must

show that they were either personally involved in the constitutional violation or engaged in

acts that were causally connected to the constitutional violation alleged. Woods v. Edwards,

51 F.3d 577, 583 (5th

Cir. 1995). Personal involvement is an esse ntial element of a civil rights


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6

cause of action. Thompson v. Steele, 709 F.2d 381, 382 (5th

Cir. 1983), cert. denied464 U.S.

897 (1983).

Plaintiffs supervisory claims against Defendant Perez fail because he does not plead any

operative facts raising personal involvement of Supervisory Agent Perez prior to his arrival on

the scene. Aside from the conclusory statements in 12, 13, and 15 Plaintiff pleads no operative

facts sufficient to plead a claim of liabilityplausible or not--based on Perezs supervision of

Lands. There are no facts demonstrating how Defendant Perez personally failed to supervise

Defendant Lands. Therefore the claim must be dismissed for failure to state a claim upon which

relief may be granted.

B. The Defendants are Entitled to Dismissal of the Claims or Summary Judgment

on All Fourth Amendment Claims Because They Are Entitled To Qualified

Immunity

1. Facts

See Fact Appendix. The following facts are not in dispute:

The Uvalde checkpoint is a fixed immigration checkpoint located on United States

Highway 90 in Uvalde County, Texas about 67 miles from the border with Mexico. The

checkpoint has as one of its primary missions the detection of persons illegally in this country.

The means of accomplishing this mission is to conduct immigration inspections of motorists who

are travelling east on Highway 90.

The events the Plaintiff contends gave rise to his claims occurred on March 18, 2010 at

the Uvalde checkpoint.


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7

The Defendants are Border Patrol Agent Justin K. Lands and Supervisory Border Patrol

Agent Raul Perez. They were on duty and performing their assigned duties at all times during

the incident Plaintiff contends gave rise to his claims.

Exhibit D is a video posted by the Plaintiff on the Internet which depicts most of the

events of March 18, 2010.

2. The Standard of Review.

It is well-settled that government officials performing discretionary functions are

entitled to qualified immunity from liability for civil damages so long as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Where the defendant seeks

qualified immunity, a ruling on that issue should be made early in the proceedings so that the

costs and expenses of trial are avoided where the defense is dispositive. Saucier v. Katz, 533

U.S. 194, 200 (2001). [Q]ualified immunity constitutes an immunity from suit rather than a

mere defense to liability. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th

Cir. 2002)

(en banc), cert. denied537 U.S. 1232 (2003) (emphasis in original) (quoting Mitchell v. Forsyth,

472 U.S. 224, 227 (1985). Qualified immunity is an entitlement not to stand trial or face the

other burdens of litigation. Id. (quoting Mitchell v. Forsyth, 472 U.S. at 526). Although

qualified immunity is an affirmative defense that must be pleaded by a defendant official,

Harlow, 457 U.S. at 815, [t]he plaintiff bears the burden of proving that a government official

is not entitled to qualified immunity.4 Michalik, 422 F.3d 252, 258 (2005) (emphasis added).

Qualified immunity is intended to give government officials a right not merely to avoid

4Cases interpreting immunity defenses in actions under 42 U.S.C. 1983 are equally applicable

to Bivens cases filed against federal officials. Butz v. Economou, 438 U.S. 478, 504 (1978).


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standing trial, but also to avoid the burdens of such pretrial matters as discovery. McClendon

v. City ofColumbia, 305 F.3d at 323 (emphasis added; citation omitted. Thus, adjudication of

qualified immunity claims should occur at the earliest possible stage in litigation. Id. (quoting

Hunter v. Bryant, 502 U.S. 224, 227 (1991)).5

To establish an entitlement to qualified immunity, a government official must first show

that the conduct occurred while he was acting in his official capacity and within the scope of his

discretionary authority. Cronen v. Tex. Dep't of Human Servs., 977 F.2d 934, 939 (5th Cir.1992).

Once a defendant has properly invoked qualified immunity, the burden rests on the plaintiff to

show that the defense does not apply. McClendon v. City of Columbia, 305 F.3d at 323.

After a federal officer demonstrates an entitlement to raise qualified immunity, the Court

evaluates the defense by engaging in two inquiries. Sanchez v. Fraley, 376 Fed. Appx. 449, 450

(5th

Cir. 2010). First, the court determines whether the facts alleged, taken in the light most

favorable to the party asserting the injury, show that the defendant's conduct violated a

constitutional right.Id., (quoting Saucier v. Katz,533 U.S. 194, 201 (2001), overruled in part by

Pearson v. Callahan, 555 U.S. 223, (2009)). Next the court determines whether the right

violated was clearly established at the time. Id. While it is often appropriate to answer

these two questions sequentially, courts are vested with sound discretion in deciding which of

the two prongs of the qualified immunity analysis should be addressed first. Id. (quoting

Pearson, 129 S.Ct. at 818).

5 A defendant claiming qualified immunity is entitled to have that issue resolved prior to the

commencement of discovery. Mitchell v. Forsyth, 472 U.S. 511, 526-527 (1985); Vander Zee v.

Reno, 73 F.3d 1365, 1368-1369 (5th

Cir. 1996). Orders denying motions to dismiss or motions

for summary judgment asserting official immunity defenses are immediately appealable as finaljudgments under 28 U.S.C. 1291. Martin v. Memorial Hospital at Gulfport, 86 F.3d 1391,

1394-1397 (5th

Cir. 1996);Mitchell v. Forsyth, 472 U.S. at 530.


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The Court must make two overlapping objective reasonableness inquiries. Lytle v.

Bexar County, Tex.,560 F.3d 404, 410 (5th Cir.2009) (alteration omitted) (quoting Saucier, 533

U.S. at 210), cert. denied, --- U.S. ----, (2010).

We must first answer the constitutional violation question by

determining whether the officer[s'] conduct met the FourthAmendment's reasonableness requirement.... If we find that the

officer[s'] conduct was not reasonable under the Fourth

Amendment, we must then answer the qualified immunity questionby determining whether the law was sufficiently clear that a

reasonable officer would have known that his conduct violated the

constitution. In other words, at this second step, we must ask thesomewhat convoluted question of whether the law lacked such

clarity that it would be reasonable for an officer to erroneously

believe that his conduct was reasonable. Despite any seemingsimilarity between these two questions, they are distinct inquiriesunder Saucier, and we must conduct them both.

Id.

As with any summary judgment motion, while the Court must construe the evidence in

the light most favorable to the nonmoving party, [u]nsubstantiated assertions, improbable

inferences, and unsupported speculation, are not sufficient to defeat a motion for summary

judgment. Winfrey v. San Jacinto County, 2012 WL 3062159, *3 n5 (5thCir. 2012) (quoting

Brown v. City of Houston, 337 F.3d 539, 541 (5th

Cir. 2003).

As demonstrated below, Defendant Lands and Perezs actions met the Fourth

Amendment reasonableness standard, and therefore they are entitled to summary judgment.

3. Defendants Are Entitled to Summary Judgment on Qualified Immunity.

a.

Defendants Properly Raise Qualified Immunity.

The Plaintiff pleads that Defendants Lands and Perez were federal officers acting in

scope of their duties (First Amended Complaint, 50), and the defendants assert this as well in


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their declarations. Thus, the defendants are entitled to the protection of the defense of qualified

immunity.

b. The Plaintiffs Version of Events Must be Evaluated with

Reference to His Videotape.

The Court should measure the Plaintiffs version of events against the video he created

and posted on the Internet. When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. 372, 380 (2007). Accordingly, a court should reject a plaintiff's

description of the facts where the record discredits that description but should instead consider

the facts in the light depicted by the videotape. Carnaby v. City of Houston, 636 F.3d 183,

187 (5th Cir.2011) (quoting Scott, 550 U.S. at 381).

Exhibit D is a videotape of the events of March 18, 2010 posted by the Plaintiff on the

Internet. While there appears to be some editing of the video, it demonstrates that the Plaintiff

set out to bait the agents and make it as difficult as possible to conduct an immigration

inspection. The video also reveals that the Plaintiff believed, erroneously, that he could be

directed to secondary only if something other than a routine immigration inspection was to be

conducted. The video supports the Defendants version of events, and contradicts the Plaintiffs

story that he was cooperative, provided his documents and that it was the agents who prolonged

the immigration inspection. In fact, the Plaintiff was evasive, diverted Agent Lands from his

inspection by arguing with him, refusing to roll down his window, and acting in a highly

discourteous fashion. This activity continued with Supervisory Agent Perez. The video

demonstrates that Plaintiffs actions prolonged the time it took to complete the inspection.


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4. Defendants did not Violate Plaintiffs Fourth Amendment Rights.

In assessing a qualified immunity defense, a Court must first determine whether the

plaintiff has alleged a violation of a clearly established constitutional or statutory right.

Michalik v. Hermann, 422 F.3d at 257-258. A right is clearly established if its contours are

sufficiently clear that a reasonable official would understand that what he is doing violates that

right. Id. at 258 (citation omitted). If the allegations do not establish the violation of a

constitutional right, the officer is entitled to qualified immunity. Price v. Roark, 256 F.3d 364,

369 (5th

Cir. 2001).

5.

Defendant Lands Conduct Met the Fourth Amendment Standard.

Plaintiff had a right to have the immigration inspection at the Uvalde checkpoint

conducted promptly. Plaintiff had no right to set the parameters of that inspection. It is settled

law that (1) a motorist such as the Plaintiff could be detained at a permanent immigration

checkpoint like the one on Highway 90 in Uvalde County for the purposes of an immigration

check; (2) the immigration check can occur either at the initial point of encounter or at a

secondary inspection site; and (3) a Border Patrol Agent may ask whatever questions he chooses

in conducting the check so long as the stop is of a duration expected for an immigration stop; and

(4) that any extension of the length of detention due to the wrongful conduct of the Plaintiff

cannot result in Fourth Amendment violation.

a. The Detention at the Checkpoint was Permissible Under the

Fourth Amendment

Plaintiff does not challenge the initial detention by Agent Lands at the primary

checkpoint to inquire into his immigration status, as indeed he cannot since the initial detention

was conducted at a fixed immigration checkpoint.


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The purpose of an immigration checkpoint is to verify the

immigration and naturalization status of the passengers in the

vehicles passing through the checkpoint. The Supreme Court hasheld that this purpose is constitutionally sufficient to support

stopping all vehicles which pass through the checkpoint, even in

the absence of any individualized reasonable suspicion or probablecause that a particular vehicle contains illegal immigrants.

United States v. Garcia-Garcia, 319 F.3d 726, 729 (5th Cir.), cert. denied539 U.S. 910 (2003)

(citing United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976). This is because stops for

brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth

Amendment. United States v. Martinez-Fuerte, 428 U.S. 543, 566 (1976). Thus, Agent Lands

brief detention of Plaintiff at the primary checkpoint did not violate the Fourth Amendment.

b. The Referral To Secondary Inspection Did not Violate the

Fourth Amendment

Plaintiff contends that Agent Lands had no legal reason to refer him to secondary

inspection (Complaint, 9), apparently believing that the immigration inspection could not be

conducted at the secondary inspection point, and that he could not be detained there by Agent

Lands unless Agent Lands had reasonable suspicion that Plaintiff was engaged in criminal

activity. His pleadings allege that Agent Lands could not refer him to secondary inspection

unless Agent Lands had reasonable suspicion of criminal activity by Plaintiff or probable cause

to arrest the Plaintiff. Exhibit D demonstrates that Plaintiff objected to the stop and argued with

Agent Lands that he could not be detained without reasonable suspicion of criminal activity.

Agent Lands explains in his declaration that the checkpoint was busy and that a semitractor

trailer was pulling in behind Mr. Rynearson, so he referred Mr. Rynearson to secondary. Mr.

Rynearsons video corroborates Agent Lands version of these events and contains no evidence

that Agent Lands conducted, much less completed, his inspection at the primary checkpoint. It is

settled law that a referral to secondary inspection to conduct a slightly longer immigration


28/241


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(5th Cir.2001)). This includes the time necessary to ascertain the number and identity of the

occupants of the vehicle, inquire about citizenship status, request identification or other proof of

citizenship, and request consent to extend the detention. United States v. Machuca-Barrera,

261 F.3d at 433. While the duration of an immigration checkpoint detention should be brief, it is

settled law that the length of any detention must be evaluated under the Fourth Amendment

using common sense and ordinary human experience. See United States v. Sharpe, 470 U.S.

675, 685 (1985). This includes determining whether the detention was extended as a result of the

refusal of the person detained to cooperate with the inspection. Cf. United States v. Sharpe, 470

U.S. at 485.

Exhibit D demonstrates that even before the Plaintiff reached the secondary inspection

point, he had made up his mind that he would not cooperate with Agent Lands inspection, as

evidenced by the fact that he rolled up his window as he pulled into the secondary inspection

point. From that point forward, the Plaintiff challenged Agent Lands authority to detain him at

the secondary inspection point, and refused to cooperate with Agent Lands request to roll down

his window or exit the vehicle to speak with him. Plaintiff made a telephone call while Agent

Lands was speaking with him, and refused to cooperate with questioning. In what appears to be

an attempt to intimidate Agent Lands, Plaintiff lied to Agent Lands and told him the FBI advised

him that he could be detained only on reasonable suspicion. Plaintiff insisted, mistakenly, that

Agent Lands could not conduct his immigration inspection at secondary inspection unless he had

reasonable suspicion that the Plaintiff was engaged in criminal activity. Exhibit D also reveals

that Plaintiff believed that he could insist that Agent Lands explain the reasons for his detention

to his satisfaction before the inspection could proceed. Thus, Agent Lands immigration

inspection was thwarted by Plaintiffs actions in rolling up his window, refusing to roll it down


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until Agent Lands explained the reason for the referral to secondary. Plaintiff persisted in this

conduct after Agent Lands explained repeatedly that the Plaintiff was detained for an

immigration inspection, that Lands did not need reasonable suspicion to conduct that inspection,

and repeatedly requested that the Plaintiff roll down his window so he could speak with him and

examine his documents. All of these actions by the Plaintiff prolonged the inspection, which

continued as long as the Plaintiff chose not to cooperate with Agent Lands.

When it became obvious that Plaintiff would not cooperate with the inspection, Agent

Lands took the reasonable step of writing down the information from Plaintiffs identification

cards and checking that information against electronic databases, and to summon a supervisor to

deal with Mr. Rynearson. Thus, Agent Lands did not violate the Fourth Amendment by

prolonging the duration of the inspection because it was Plaintiffs actions, not Agent Lands

actions, that prolonged the inspection. Cf. United States v. Sharpe, 470 U.S. at 485.

Plaintiffs assertions in his complaint need not be accepted by the Court to the extent they

are contradicted by the video. The video demonstrates that contrary to Plaintiffs assertions, he

was in fact evasive by arguing with Agent Lands, accusing Agent Lands of lying about whether

he could hear the Plaintiff (while Lands was standing outside the vehicle in the noisy

environment under the inspection point canopy), and refusing to roll down his window. Plaintiff

did not provide his drivers license or military ID to Agent Landshe simply stuck them in

the window and refused to roll down his window and hand them to Agent Lands. He resisted

answering questions be insisting that he would cooperate only after the Agent explained the

reasons for the stop to his satisfaction.


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6. Defendant Perezs Actions Were Objectively Reasonable.

Plaintiff does not allege that Supervisory Agent Perez was in any way involved in the

prior to his arrival on the scene. He contends that Supervisory Agent Perez acted unreasonably

by asking him for the name of his commanding officer, and taking 15 additional minutes to call

Laughlin Air Force Base to confirm his identity. He claims these and other actions were

pretextual, but the appropriate standard is whether these actions were objectively reasonable.

The video demonstrates that Supervisory Agent Perez was courteous to Mr. Rynearson.

He simply asked him his commanding officers name. Mr. Rynearson refused to provide it, but

acknowledged that Supervisory Agent Perez could obtain that information himself by calling

Laughlin Air Force Base. Agent Perez explains in his declaration that it took him several

minutes to reach the checkpoint after he was summoned, and that after speaking with Mr.

Rynearson and examining his documents, he decided to release him. Plaintiffs actions

demonstrated that extra care should be taken in ascertaining that his documents were genuine and

he was in the United States lawfully. The agents are conducting an inspection in which they

ascertain the identity of the person they are inspecting, and whether they are lawfully in this

country.

7. Plaintiffs are Entitled to Summary Judgment on the Conspiracy and

Supervisory Torts.

The Defendants are entitled to summary judgment on the conspiracy and supervisory

torts because their actions during the immigration inspection were objectively reasonable. They

have also denied the existence of any conspiracy. The conspiracy and supervisory torts are

simply a means of interjecting a subjective component into what must be an objective review of

their conduct.


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The length of the detention was caused solely by Plaintiffs misguided belief that a

referral to secondary inspection required reasonable suspicion of criminal activity, and his

inappropriate insistence on an explanation from Agent Lands before he would answer questions

or provide his documents for inspection. Agent Lands reactioncalling his supervisor to take

overoccurred after he explained the reasons for the detention to Plaintiff, who refused to

accept these explanations and continued to thwart the inspection.

WHEREFORE, premises considered, the Court should DISMISS all claims asserted

against the United States in this action, and dismiss the United States from this action since no

claims remain against the United States. A proposed order is submitted with this motion.

Respectfully Submitted,

ROBERT PITMANUNITED STATES ATTORNEY

BY: /s/Harold E. Brown Jr.

HAROLD E. BROWN, JR.

Assistant United States Attorney

Oklahoma Bar No. 001192601 N.W. Loop 4l0, Suite 600San Antonio, Texas 78216

(210) 384-7320

(210) 384-7322 [email protected]
mailto:[email protected]:[email protected]:[email protected]


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I hereby certify that on September 24, 2012, I electronically filed the foregoing documentwith the Clerk of Court using the CM/ECF system which will send notification of such filing to

the following:

Randall L. Kallinen

Attorney at Law

511 Broadway St.Houston, Texas 77012

In addition, Defendant is also sending the foregoing document with exhibits via CMRRRto Plaintiffs counsel.

/s/ Harold E. Brown Jr.___



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DEL RIO DIVISION

MAJOR RICHARD RYNEARSON, )

Plaintiff, ))

v. ) Civil Action No. DR-12-CA-0024-AM-CW

)

THE UNITED STATES OFAMERICA, )BORDER PATROL AGENT LANDS, )

Individually, and BORDER PATROL )

AGENT CAPTAIN RAUL PEREZ, )Individually, )

)

Defendants. )

FACT APPENDIX

This fact appendix is provided pursuant to Local Rule CV-7(d)(1). References are to the

Exhibits filed with the Motion to Dismiss.

A. The Defendants.

Border Patrol Agent Justin K. Lands has been employed as a United States Border Patrol

Agent since October 13, 2008. On March 18, 2010, Agent Lands was on duty as a Border Patrol

Agent at the Uvalde Checkpoint on Highway 90 near Uvalde, Texas (Exhibit A, page 1).

Supervisory Border Patrol Agent Raul Perez has been employed as a Border Patrol Agent

since July 27, 1987. He was worked at the Uvalde station since December 15, 1987. He was

promoted to Supervisory Border Patrol Agent in December 2004 (Exhibit B, page 1). On March

18, 2010, Supervisory Border Patrol Agent Perez was on duty and performing supervisory duties

(Exhibit B, page 1).


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B. The Uvalde Checkpoint.

The incident that gave rise to the claims filed in this action occurred at the Uvalde Border

Patrol checkpoint. This is a fixed checkpoint located on Highway 90 in Uvalde, Texas (Exhibit

A, page 1). An aerial photograph of the checkpoint is at Exhibit C, and Exhibit D depicts

portions of the checkpoint located under the canopy seen in Exhibit C.

The checkpoint is a fixed location at which immigration inspections are conducted by the

United States Border Patrol 24 hours a day, seven days a week (Exhibit A, page 2). The

checkpoint is located about 67 surface miles from the border with Mexico on Highway 90

(Exhibit A, page 2). The checkpoint is part of a multi-layered border security strategy aimed in

part at curtailing illegal immigration by capturing persons illegally in this country (Exhibit A,

page 2).

Persons travelling toward San Antonio on Highway 90 are directed off the highway and

into the checkpoint area, where the immigration inspection occurs (Exhibit A, page 2).

C.

Agent Lands Actions on March 10, 2010.

Agent Lands was in uniform and stationed at the Uvalde Checkpoint as Mr. Rynearson

approached the primary inspection point (Exhibit A, page 2). As Mr. Rynearson pulled into

primary inspection, he greeted Mr. Rynearson, walked around the vehicle to inspect the interior,

and asked if this was Rynearsons vehicle (Exhibit A, page 3; Exhibit D, 00:00:26). Agent

Lands then asked if Mr. Rynearson could roll down your window and Rynearson rolled down

the window a little more (Exhibit D, 00:00:29). Agent Lands asked if the window could Mr.

Rynearson responded that it it can go down more (Exhibit D, 00:00:31). Agent Lands decided

to conduct his immigration inspection at the secondary inspection area since he was having

trouble hearing Agent Lands due to a combination of factors, including the need to get other


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agents to conduct the inspection of the vehicles arriving at the checkpoint, Rynearsons failure to

roll down his window all the way, and the noise from a tractor-trailer right behind Rynearsons

vehicle (Exhibit A, page 3; Exhibit D, 00:00:25-48 (showing the tractor pulling in behind

Rynearsons vehicle). Agent Lands explained to Mr. Rynearson that he was being diverted to

secondary because of all the traffic (Exhibit D, 00:00:42-48). Mr. Rynearson complied and

drove his vehicle to the secondary inspection point, rolling up his window when he arrived there

(Exhibit D, 00:00:44-1:03).

Agent Lands arrived at Mr. Rynearsons vehicle less than 30 seconds later (Exhibit D,

01:32). At first Agent Lands requested that Mr. Rynearson he refused to roll down his window

or exit the vehicle. For the next several minutes Mr. Rynearson refused to roll down his window

and instead yelled at the agent through the window asking him whether and whether or why he is

being detained. Agent Lands explained to Mr. Rynearson that he was conducting an immigration

inspection that Mr. Rynearson was evading his questions and that he needed to roll down his

window so they could speak to one another. Mr. Rynearson refused all these efforts (Exhibit D,

1:32-5:08). Agent Lands was never given the opportunity to question Mr. Rynearson or examine

his documents because Mr. Rynearson demanded that Agent Lands answer his questions, and

would not roll down his window so a normal conversation and the documents could be examined

(Exhibit D, page 4).

Mr. Rynearson apparently believed that Agent Lands required reasonable suspicion or

probable cause in order to refer him to secondary inspection. He appears to have called the FBI,

spoken with a duty agent, and claimed that the Agents were threatening him, and that they could

not detain him at secondary inspection without reasonable suspicion (Exhibit D, part 1, 6:48-

9:52). When the agent advised him that he should cooperate with the Border Patrol agents,


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Rynearson replied so youre telling me I have to give up my Fourth Amendment Rights?

(Exhibit D, part 1, 9:00-9:52).

Mr. Rynearson then called Agent Lands over to the vehicle and advised him that the FBI

in San Antonio told him that he could not be detained without reasonable suspicion. He then

insisted that Agent Lands tell him why he was being detained, and what reasonable suspicion

Agent Lands had which justified the detention. Agent Lands explained that this was an

immigration inspection and that he did not need reasonable suspicion to put him in secondary

inspection. He also stated that he did not have to explain to Mr. Rynearson why he was referred

to secondary. Agent Lands terminated the conversation, telling Mr. Rynearson that he had

summoned a supervisor and that the supervisor would discuss the situation with Rynearson

(Exhibit D, part 2, 0:00-3:03). Agent Perez arrived about four and one-half minutes later

(Exhibit D, part 2, 07:30).

Agent Lands understood that an immigration inspection could be held at the primary

inspection point or the secondary inspection point (Exhibit A, page 3). He was also aware that

the detention was for the sole purpose of determining whether Mr. Rynearson was lawfully in the

United States, and that the inquiry should normally confined to a visual inspection of the interior

of the vehicle, a few questions concerning citizenship and a physical examination of documents

(Exhibit A, page 3). At times the inspection can be expanded when a person such as Mr.

Rynearson is evasive and gives the Agent inspecting the person reason to inquire further into his

status, but this normally takes the form of running additional checks on the drivers license and

passports presented by the person being inspected (Exhibit A, page 4). Mr. Rynearson chose to

be confrontational and noncooperative, and therefore his inspection took longer because of this

behavior (Exhibit A, page 6). When Mr. Rynearson continued to refuse to cooperate with the


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inspection, Agent Lands decided to call a supervisor to complete the inspection (Exhibit A, page

5).

D. Supervisory Border Patrol Agent Perezs Actions on March 10, 2010

Agent Perez was on patrol duty and was seven miles away from the Uvalde Checkpoint

when he received a radio call from another supervisor that he was needed at the checkpoint to

deal with the situation created by Mr. Rynearson (Exhibit B, page 2). Prior to the radio call, he

was unaware of the situation with Mr. Rynearson (Exhibit B, page 2). Agent Perez drove by the

most direct route from his location to the checkpoint, and arrived after 10 to 15 minutes (Exhibit

B, page 2). He arrived at the checkpoint and as briefed by the other supervisor and Agent Lands

(Exhibit B, page 2). Agent Perez assumed responsibility for the situation and decided to deal

directly with Mr. Rynearson (Exhibit B, page 2).

Agent Perez then walked to Plaintiffs vehicle (Exhibit B, page 2; Exhibit D, part 2,

07:32). As Agent Perez approached Mr. Rynearsons vehicle he noticed that Mr. Rynearson had

passports stuck on the inside of his window (Exhibit B, page 2). After tapping on the drivers

side window, Mr. Perez asked Mr. Rynearson to roll down his window so he could look at the

passports (Exhibit D, part 2, 07:37). Agent Perez advised Mr. Rynearson that he would check

out the passports and if they were OK he would send him on his way (Exhibit D, part 2,

00:08:38). He asked Mr. Rynearson if he was in the military, and Rynearson advised him that he

was (Exhibit D, part 2, 08:52). Rynearson refused to provide the name of his commanding

officer, which Agent Perez had requested in order to verify his military identity (Exhibit B, page

2; Exhibit D, part 2, 08:58). Mr. Rynearson challenged Agent Perez, and accused him of

interfering with his military employment (Exhibit D, part 2, 09:11). Agent Perez replied that he

was doing his job (Exhibit D, part 2, 09:20-30).


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Agent Perez proceeded to the checkpoint and called dispatch to run a record checks on

the passports and other records on Mr. Rynearson (Exhibit B, page 3). While these checks were

being run, Agent Perez, who had received specialized training in the past in document

examination, examined the passports and determined that they appeared genuine and unaltered

(Exhibit B, page 3). This was confirmed by dispatch records check (Exhibit B, page 3). At that

time, Agent Perez determined that Mr. Rynearson was a United States citizen, with no other

reason to hold him, and he directed Agent Lands to release Mr. Rynearson (Exhibit B, page 3).

The videos on Exhibit D indicate that it took approximately 15 minutes for Agent Perez

to complete the immigration inspection of Mr. Rynearson. This consists of the time Agent Perez

spoke with Mr. Rynearson at his vehicle until Mr. Rynearson was released by Agent Lands

(Exhibit D, part 2, 7:35 to Exhibit D, part 4, 5:03). Defendant Perez called Laughlin AFB to

confirm Rynearsons status. This confirmation process took approximately ten to fifteen minutes.

(Exhibit F, page 2).

The total time for the inspection was approximately 30 minutes.

The video evidence at Exhibit D demonstrates that the Plaintiff intended to challenge and

refuse to comply with the immigration inspection that Agent Lands and Supervisory Agent Perez

conducted on March 18, 2012. An immigration inspection includes identification of the person

being inspected as well as a determination of that persons immigration status (Lands

Declaration, Exhibit E, page 2). Plaintiff rolled up his window before he pulled into the

secondary inspection point (Exhibit D, Part 1, 00:00:55). In addition to refusing to roll down his

window in response to Agent Lands request, he spoke in a challenging, discourteous tone,

yelling at Agent Lands (Exhibit D, Part 1, 00:01:40 to 00:05:10). During this period Plaintiff


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decided to make a telephone call and simultaneously argue with Agent Lands rather than answer

Agent Lands questions (Exhibit D, Part 1, 00:02:33 to 00:04:05). His demeanor appeared

calculated to provoke Agent Lands, who chose to break off the exchange and summon a

supervisor to deal with Plaintiff.

Several minutes later the Plaintiff appears to have called the FBI and explained to them

that he was being detained at the Uvalde checkpoint (Exhibit D, Part 1, 00:06:47). He explains

to someone that he was directed to secondary without explanation, that he refused to exit his

vehicle or roll down his window, and that he was filming the encounter (Exhibit D, Part 1,

00:06:47 to 00:08:49). He falsely informed the person on the telephone that he was being

threatened by the Agents (Exhibit D, Part 1, 00:08:25 to 00:08:40). He also states repeatedly that

he believed that he could not be detained at secondary without reasonable suspicion and

whomever he was speaking to apparently advised him to comply with the Border Patrol Agents

instructions, (Exhibit D, Part 1,00:08:40 to 00:09:30).

Plaintiff then called Agent Lands over to the vehicle and lies to him, stating that he called

an FBI agent who informed him that he could not be held without reasonable suspicion (Exhibit

D, Part 2, 00:00:00 to 00:00:41). Plaintiff then engages in a verbal exchange with Agent Lands

in which he insists that he cannot be held without reasonable suspicion, that he can hear the agent

and insinuates that Agent Lands can hear him, and that he wants an explanation of the reasons

for his detention (Exhibit D, Part 2, 00:00:41 to 00:03:00). During this exchange Agent Lands

explains that he cannot hear the Plaintiff well, that he was being held at secondary because he

was being evasive and refusing the answer questions. Agent Lands informed Plaintiff that a

supervisor was on the way to deal with the situation (Exhibit D, Part 2, 00:03:00 to 00:03:04).


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March 18, 2010 was the only occasion that Agent Lands and Supervisory Agent Perez

had any interaction with the Plaintiff. At the time of the events on March 18, 2010, they had

never heard of Mr. Rynearson. (Exhibit E, page 4 and Exhibit F, page 3).

Exhibit D also demonstrates that Plaintiff did not provide his military ID and drivers

license to Agent Lands. Displaying these documents on the inside of a car window hardly

qualifies as supplying it or making it available to Agent Lands. Agent Lands pointed this out

when he stated that he could not examine the documents without them being handed to him.

(Exhibit E, page 1).

Defendants Perez and Lands had no intent to conduct a search of Plaintiff or his vehicle.

They have no practice or procedure in which they conduct an immigration inspection in a

manner that will coerce or encourage a person being inspected to consent to a search of a person

or vehicle. They deny that there has ever been such a practice or procedure in place at the

Uvalde checkpoint. Both defendants have taken oaths to enforce the law and protect the people

of the United States, and conduct themselves in a manner that will achieve these goals by

following the law. (Exhibit E, page 2-3, and Exhibit F, page 2-3).


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Respectfully Submitted,

ROBERT PITMAN

UNITED STATES ATTORNEY

BY: /s/Harold E. Brown Jr.


Assistant United States AttorneyOklahoma Bar No. 001192

601 N.W. Loop 4l0, Suite 600

San Antonio, Texas 78216(210) 384-7320

(210) 384-7322 Fax

[email protected]


I hereby certify that on September 24, 2012, I electronically filed the foregoing documentwith the Clerk of Court using the CM/ECF system which will send notification of such filing to

the following:

Randall L. Kallinen

Attorney at Law511 Broadway St.

Houston, Texas 77012

/s/ Harold E. Brown Jr.___

mailto:[email protected]:[email protected]:[email protected]


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window on his vehicle was rolled almost all the way up. As he pulled past me, I walked from

behind

his vehicle and asked him if the vehicle was his and

ifhe would

roll down his window.

He rolled it down a

half

an inch or so more, and then I directed him to proceed to the secondary

inspection area, which was located perhaps 150 feet away, and advised him that I would be with

him

in

a moment. I directed him to secondary inspection because there was a tractor-trailer right

behind

Mr. Rynearson, and I needed to get help to check all the other vehicles including Mr.

Rynearson s. I was also having trouble hearing him since his window was not rolled down all

the way, and the truck was making a lot of noise since it was located less than 20 feet away and

had

its engine running.

I have received specific training in conducting checkpoint immigration inspections of the

sort that I attempted to conduct with Mr. Rynearson. I am aware that detention at the checkpoint

is,

in

the absence of some more specific reasons for the detention, solely for the purpose of

determining whether the person or persons in the vehicle are lawfully in the United States, and

that the detention should be brief. Mr. Rynearson s detention was solely for the purpose of

conducting an immigration inspection. I

am

also aware that an immigration inspection of Mr.

Rynearson

can

consist only of a visual inspection of the interior of the vehicle to determine who

is in the vehicle, a few questions aimed at determining whether the person(s) detained are

lawfully in the United States, and an inspection of identification and immigration documents

(such as a passport, permanent resident card, or border crossing card). I was also aware that an

immigration inspection may

be

made at

the point

where I stopped Mr.

Rynearson s

vehicle, or

at

the secondary inspection location.

At

the Uvalde checkpoint, the secondary inspection area

on

March 18,

2010

was a parking area approximately 25 yards from the point where I initially

encountered Mr. Rynearson. No reasonable suspicion is necessary to direct a person to the

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secondary area for an immigration inspection. Finally, immigration inspections are made

without reasonable suspicion of

criminal activity

by

the person being detained at the checkpoint.

f

a Border Patrol Agent such as myself becomes aware of facts that create a suspicion of

criminal activity, then the person can be detained for further questioning.

Normally,

if

the person being detained is cooperative, an immigration inspection

conducted either at secondary requires only 2-5 minutes. I normally run immigration records

through our sector radio

room

which could also include a want/warrants check. This process

could take a couple ofminutes.

f

no K-9 alert, we confirm immigration status and then release

the individual.

Mr. Rynearson never gave me the opportunity to question him or examine his documents.

When I arrived at the secondary inspection area, Mr. Rynearson had his windows rolled up. He

refused to roll his window down, and also refused my request that he exit his vehicle, which I

suggested s an alternative to speaking through a closed window. Mr. Rynearson was speaking

in a loud voice, almost yelling at me, demanding to know

if

he was being detained, to which I

answered yes. He insisted that he could not be detained at secondary inspection unless I had

reasonable suspicion that he was engaged in criminal behavior. I responded that I did not need

reasonable suspicion and refused to answer his questions since it was his responsibility to answer

my questions. Throughout the exchange, I kept explaining that he needed to roll down his

window so I could ask my questions, and he continued to refuse to do so. At one point

he

took

out a military ID card and driver s license and stuck them in the window sill so I could see them.

When I advised him that I needed to physically inspect them, he refused to roll down the window

and hand them to me.

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Mr. Rynearson s conduct in rolling up his window and challenging my inspection raised

my suspicion that he was a decoy or otherwise trying to distract me and the other agents by tying

us up with his vehicle, drawing resources from the checkpoint, so that other vehicles could pass

through without a thorough inspection. Drug smugglers are known to use decoys to draw the

attention of agents to the decoy vehicle while other vehicles following the decoy vehicle pass

through the inspection point. I was also concerned that the reason he would not roll down his

window was due to him having drugs hidden in the door compartment.

I decided that the best approach was to complete the immigration inspection and use the

results

of

that to determine whether any further inquiry was necessary. In the course

ofthe

exchange with Mr. Rynearson, he put what appeared to be a military ID card and his driver s

license on the inside window sill of his vehicle and informed me that he was in the military and

stationed at Laughlin Air Force Base, which I knew was located jus t outside Del Rio, Texas. I

asked him to hand me the identification cards so I could determine

if

they were genuine, and he

refused to roll down his window and provide them to me. t this point, I decided to call a

supervisor to the scene to determine how best to handle the situation created by Mr. Rynearson s

refusal to cooperate with the immigration inspection.

I then called Supervisory Border Patrol Agent Perez and requested that he respond to the

secondary inspection area and deal with Mr. Rynearson.

I could not complete my inspection because Mr. Rynearson s actions kept me from

asking

my

questions and inspecting his documents. I have been trained to conduct immigration

inspections by asking questions of the detainee face to face, with both myself and the person

being questioned speaking

in

a normal tone of voice, so I can judge the credibility of the person

with whom I am speaking. I am also always vigilant for my safety, which requires that I control


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Upon receiving the call, it took me approximately

1

to

15

minutes to arrive at the

checkpoint. At the time I received the call I was about 7 miles away and was on patrol duty. I

drove my assigned vehicle by the most direct route to the checkpoint and immediately exited my

vehicle and met with Border Patrol Acting Supervisor, Roy Ehresman, who briefed me on the

situation with Mr. Rynearson. I was informed that Mr. Rynearson had been referred to the

secondary inspection area for his immigration inspections, and was non-cooperative and would

not roll down the window

to

speak with Agent Lands. Mr. Rynearson placed his military

ID

and

out of state driver's license on the window seal, but would not roll down his window. I then

spoke to Border Patrol Agent, Justin Lands, who was on primary duty and

he

explained further

the situation at hand. I asked Agent Lands

ifth r

was a K-9 alert and he responded No.

I had no involvement with Mr. Rynearson prior to my arrival at the Uvalde Checkpoint.

Based on the briefing from Agents Ehresman and Lands, I decided to assume responsibility from

Lands for completion of the immigration inspection. I then proceeded directly to the secondary

inspection area. I walked over

to

Rynearson's vehicle to determine if he could hear me. At that

time, Rynearson had two passports, driver's license and military ID lodged between the window

and window seal. I asked Rynearson why he had not cooperated with the Agent Lands.

Rynearson replied that he did and that he recorded the entire stop live and

he

could show it to me

if I wanted. I asked for his documents to inspect and he rolled down his window approximately

one-half inch and slid his passports thru the window opening. I noticed that he had an official

United States passport, United States passport, military

ID

card and out

of

state driver's license

on the window seal. I also asked him for his commanding officer's name, which Rynearson

refused to give. I asked for the name of his commanding officer

so

that I would have some facts

to confirm his military identity.

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I proceeded into the checkpoint and called dispatch to run a record check thru either

Treasury Enforcement Communication System (TECS); Automated Targeting System (ATS); or

Central Index System (CIS) databases to confirm Mr. Rynearson s identity. While dispatch was

conducting the record check, I carefully scrutinized his passports to ensure that they were

genume. I have received specialized training in document fraud including the means and

methods of determining whether a passport is genuine, altered or forged. Based on my review of

Mr. Rynearson s documents, they appeared genuine and unaltered. I received confirmation from

dispatch that the passport(s were valid. At that point, while still inside the building, I decided

that Mr. Rynearson was in fact a United States citizen and there was

no

reason

to

detain him

further. Agent Lands came into the checkpoint and I informed him to release Mr. Rynearson and

to return Rynearson s passports and send him on his way.

I have reviewed Exhibit D, which is set

of

four videos depicting some

of

the events that

occurred during Mr. Rynearson s detention. I am the supervisory agent who is seen walking up

to the vehicle on video number 2 at approximately 7 minutes

33

seconds (00:07:32) into the

video. While the video is a fairly accurate depiction ofth checkpoint and secondary inspection

areas at the Uvalde checkpoint, there are several facts that are not accurately depicted on the

video. Mr. Rynearson, though his face is obscured is the person sitting inside the vehicle. First,

it appears that some portions of the video may have been edited out, and therefore the events that

occurred during this time may not be on the video. Second, since the video was shot from inside

the vehicle, and the microphones were located inside the vehicle as well, the video does not

accurately depict the loud noise level outside Mr. Rynearson s vehicle. There was noise from

traffic on Highway

90

headed towards Del Rio. There was noise under the canopy covering the

entire checkpoint from vehicles entering and (especially) leaving the checkpoint area. The entire

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time I was trying to speak with Mr. Rynearson this noise level continued and I had a difficult

time hearing Mr. Rynearson because he only had his window cracked open less than an inch or

two, s I often had to guess at what he was telling me. Third, the video does not depict any

events that occurred away from Mr. Rynearson s vehicle, including my arrival, my discussions

with Acting Supervisor Ehresman and Agent Lands, and my review of Mr. Rynearson s

documents.

I declare under penalty

of

perjury that the foregoing is true

a n ~ . r e c t ~ \

J\ \

Executed on August

;:;Z

,2012. / /// 1.

I

J \ ~ /

/

RAUL

P R Z

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8/11/2019 Rynearson v United State

Documents

Rynearson v United States of America, et all